Walking the Tight Rope of the Last Chance Agreement

By
Ariel Solomon, Esq.
|August 09, 2017

Is signing a Last Chance Agreement really your last chance?

The name says it all. A Last Chance Agreement, or LCA, literally means
a federal agency is giving an employee one final opportunity to correct
poor performance, inappropriate behavior, or some other misconduct. Failure
to meet the requirements in a Last Chance Agreement may mean facing the
consequences of an adverse action such as suspension or removal from federal
service. Last Chance Agreements are frequently used in settlements for
actions pending before the Merit Systems Protection Board in cases where
a federal employee was removed from federal service for any reason the
purportedly promotes the efficiency of the service. Last Chance Agreements
are narrowly tailored and are frequently considered akin to walking a
tight rope. One false move and a federal employee may be terminated or
removed from their position.

Among other conditions, these agreements often require a federal employee
to waive their right to file an appeal with the
Merit Systems Protection Board. In waiving this right, however, a federal employee does not completely
surrender any and all recourse they may have against the Agency.

The Merit Systems Protection Board, commonly referred to as the Board,
has held that it retains jurisdiction to hear an adverse action appeal
arising from a
Last Chance Agreement violation if:

The federal employee can prove they complied with the Last Chance Agreement;

The agency materially breached the Last Chance Agreement or acted in bad faith;

The federal employee did not voluntarily enter into the Last Chance Agreement; or

The Last Chance Agreement resulted from fraud or mutual mistake.

In any appeal to the MSPB the burden of proof is borne by the appealing
party. Meaning, the appealing party must establish that sufficient evidence
to support an allegation of one of the above referenced occurrences exists.
This evidence must demonstrate to the Merit Systems Protection Board that
a non-frivolous allegation of fact exists, sufficient to give rise to
Merit Systems Protection Board jurisdiction thereby warranting its review.
Only then can a federal employee exercise his or her right to appeal an
adverse action as a result of a Last Chance Agreement.

Ultimately, a Last Chance Agreement is a legal contract. Meaning the terms
are negotiable and subject to the agreement of all parties. Frequently,
federal employment attorneys will incorporate the best language possible
to reduce future risk of termination and minimize the waiver of future
appeal rights, to the extent possible.

An attorney should always review a Last Chance Agreement prior to signature,
lest the unsuspecting MSPB appellant inadvertently sign away their future
rights of due process and the last line of defense to an improper or unlawful
termination.

Only an attorney familiar with the particular facts of your case can provide
you with the best advice concerning settlement and the language of a settlement
agreement. If you have questions regarding a Last Chance Agreement or
any other Settlement Agreement the best practice is to contact an attorney
familiar with practicing before the Merit Systems Protection Board.